Michigan Court of Appeals: Sex Offender Registry is Not Punishment

On October 21, 2014 the Michigan Court of Appeals held in People of the State of Michigan v Boban Temelkoski that the sex offender registry is not punishment. At least, for purposes of a constitutional challenge such as cruel and unusual punishment or ex post facto. The intellectual contortions the court went through to reach this absurd conclusion staggers the mind.

Facts of the Case

In 1994, 18-year-old Mr. Temelkoski pled guilty to criminal sexual conduct in the second degree against a person under 13 years old. He was sentenced to three years probation as a youthful trainee under the Holmes Youthful Trainee Act (HYTA). HYTA is a special sentencing status given to defendants who commit certain crimes between the ages of 17 and 21. Upon successful completion of their sentence, no conviction of guilt will enter on their record. This legislation gives someone the opportunity to begin their adult life with a clean slate without being hampered by a criminal record which can later wreak havoc when colleges, employers, and landlords do background checks.

In spite of the defendant’s HYTA status, he was required to register as a Tier III sex offender under the Sex Offender Registry Act (SORA)– for life. After the SORA amendments of 2011 allowing for certain sex offenders to petition the court to discontinue registering as a sex offender, the defendant filed such a motion. Relying heavily on People v Dipiazza, the defendant argued that forcing someone with HYTA status to register as a sex offender violated the Michigan and United States Constitutional provisions against cruel and unusual punishment. The prosecutor objected stating that case law is clear that the sex offender registry is not punishment and that not only is Mr. Temelkoski’s case distinguishable from the facts of Dipiazza, but that it had a very limited ruling and should not apply. The trial court granted the defendant’s petition and ruled that SORA was punishment. The prosecutor appealed to the Court of Appeals. After it denied the prosecutor’s application to appeal, the Michigan Supreme Court remanded to the Court of Appeals for consideration.

The Dipiazza Case

The Court of Appeals’ decision rested heavily on its analysis of the holding in People v Dipiazza and how it was distinguishable from the facts in the present case. Dipiazza involved a “consensual” sexual relationship between an 18-year-old defendant and a 14-year old (“nearly 15-year-old”) complaining witness. The parents of the complaining witness approved of the relationship and it was a teacher who reported the situation to the authorities. SORA was in its infancy at the time of his conviction and it wasn’t until 17 years later that the legislatures gave Mr. Dipiazza the opportunity to petition the court to be removed from the sex offender list. In Temelkoski, the Court of Appeals reasoned that the holding in the Dipiazza case was very limited to people in a similar factual situation as Mr. Dipiazza as well as the fact that the 2011 SORA amendments weren’t even in existence, distinguished the case enough that it was not binding precedent as it applied to Mr. Temelkoski.

How the Court Determines What is Punishment

The court cited four factors it looks to in determining if a statute renders punishment: 1) legislative intent, 2) legislative design, 3) historical treatment of analogous cases, and 4) effects of the legislation. It further cited recent case law stating that whether a measure is criminal punishment or a civil remedy, the court looks at whether the statutory scheme is so punitive either in purpose or effect it negates the intent to be civil. This is where the court started down the path of what amounted to nothing less than intellectual gymnastics by offering the most absurd analytical reasoning in recent memory.

Court of Appeals Concludes that SORA is Not Punishment

The court flew right past the first two prongs of the analysis citing that the legislative purpose and design was to make the community safer by alerting the public of potentially dangerous people in the neighborhood rather than punishing the offender. It skipped over the third prong entirely stating that judicial history is void of any such similar cases. Its already twisted and convoluted reasoning became even more contrived when deciding the effects of the SORA legislation. It rejected the defense’s argument that the effect of SORA was punitive because of its restricted nature (not being able to live, work, and loiter around schools, daycares, etc.) and the secondary chilling effect it has on obtaining housing and jobs. Not to mention public scorn. Instead, the court held that SORA was less restrictive than standard probation which includes more monitoring, regular checking in, and far more restrictions. The court somehow failed to realize that just like with probation, offenders under SORA have to register with the police department at regular intervals as well as give immediate updates in employment, change of address, change of school just like they have to with a probation officer. This is on top of the new annual $50 oversight fee which offenders must pay. Plus, the above mentioned restrictions on where offenders can live and work certainly is akin to similar restrictions under probation. Common sense flew right over the judge’s heads without them even feeling the breeze.

The court went on to turn logic on its end by holding that the effect of SORA was not so punitive that it amounted to criminal punishment, but rather it is a remedial measure designed for community welfare. The court somehow failed to note when analyzing the legislative intent, that to require someone to register as a sex offender is the complete opposite intent of the HYTA statute. The entire purpose of HYTA is so young adults who commit indiscretions have a second chance by not tarnishing their life with a criminal record just as their life is starting. If that can be overridden by SORA, then the entire intent of being given youthful trainee status is derided. What’s the point of HYTA giving you a clean record if SORA publically broadcasts the same information that HYTA keeps under wraps? Furthermore, the information that the SORA website provides is actually a lie since HYTA clearly states that “no conviction” or finding of guilt is entered against a defendant when given youthful trainee status. However, the SORA website will say that Defendant was convicted of X Offense on X date. Under the clear, precise, and unequivocal language of the HYTA statute, that is simply not true.

What the Ruling Means

The Court of Appeals has shielded the sex offender registry from constitutional challenges such as cruel and unusual punishment (after all if it’s not punishment, it can’t be cruel and unusual) and ex post facto. Normally the judicial system cannot enact retroactive punishment. For example, if you committed an offense in 2002 that wasn’t against the law but is now, you can’t be prosecuted for the offense because at the time you committed the act it was legal. That’s what ex post facto means. The Sex Offender Registry isn’t like that. It changes constantly and offenders are forced to change with it because it ” isn’t punishment.” For example, thanks to recent amendments and changes, some people who were told when they took a plea or were convicted after a trial, they would be on the private sex offender list and now find themselves on the public list. Another example: offenders who were told they would have to register for 25 years are not being told they have to register for the rest of their life. Recent amendments include an annual $50 fee that must be paid. In my opinion, that amounts to nothing less than defendants being re-sentenced without due process of law. Furthermore (and this is the most egregious of all) if you were convicted of a sex offense prior to the creation of the sex offender list (e.g. 1980s) and you are convicted of ANY new felony (failure to pay child support, felony OWI) you can now be forced to register as a sex offender for a crime you committed and paid your debt for over 20 years ago! The system can do this because since SORA isn’t punishment then it doesn’t violate the ex post facto clause of the constitution. How ridiculous and unfair is that?

I find it astonishing that any restriction of liberty (like SORA imposes) can be construed as anything other than punishment. Whether you support the sex offender registry or not, if you are being intellectually honest I think you would have to admit the SORA restrictions are punishment. Somehow the Court of Appeals concluded otherwise.

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